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Attan Moses Okia v Ariko Herbert Edmund Okworo & Others (Election Petition Appeal 2 of 2023)

Court of Appeal · [2024] UGCA 62 · 2024 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal from a High Court decision dismissing an election petition challenging a parliamentary by-election result
Decision
Appeal partly allowed but the dismissal of the election petition affirmed; the election result stands.

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Holding

The Court of Appeal allowed grounds 1, 2, 10 and 11. It held that the second set of affidavits, obtained when Respondent No.1's advocates improperly approached the appellant's witnesses contrary to rule 19, were 'forbidden fruit' that should have been struck out, and that there is no requirement that irregularities be attributed to the winning candidate before an election can be set aside. However, re-evaluating the evidence, the court found the appellant failed to prove non-compliance affecting the result in a substantial manner to the satisfaction of the court, largely because he did not pursue his undertaking to open the ballot boxes. The appeal therefore succeeded only in part and the dismissal of the petition was affirmed.

Facts

The appellant and Respondent No.1 contested the seat of Member of Parliament for Soroti City East Constituency in a by-election held on 29 July 2022. The Electoral Commission returned Respondent No.1 as validly elected and gazetted the result on 1 August 2022. The appellant petitioned the High Court alleging illegalities and non-compliance at several polling stations, including disruption by firing of live ammunition, arrest of his agents, ballot stuffing, pre-ticking of ballots, intimidation of voters and alteration of declaration of results forms at Akisim PAG, Otatai, Owolo COU, Aloet Akum, Opuyo and Aminit polling stations. He also complained that Respondent No.1's advocates had induced twelve of his witnesses to recant their affidavits. On 20 January 2023, Ssekaana J found no merit in the petition and dismissed it with costs. The appellant appealed on fourteen grounds.

Issues

  1. Whether the trial judge erred in disregarding the complaint that Respondent No.1's advocates violated rule 19 of the Advocates (Professional Conduct) Regulations by soliciting affidavits from the appellant's witnesses, and in striking out the appellant's supporting affidavits.
  2. Whether the trial judge applied the correct standard of proof under the Parliamentary Elections Act.
  3. Whether the appellant had validly appointed polling agents under section 32 of the Parliamentary Elections Act.
  4. Whether non-compliance and illegalities affecting the result in a substantial manner were proved at the contested polling stations.
  5. Whether irregularities must be attributed to the successful candidate before an election can be set aside.
  6. Whether the trial judge erred in awarding costs against the appellant.

Orders

  • Grounds 1, 2, 10 and 11 of the appeal allowed.
  • The 12 affidavits sworn for Respondent No.1 by witnesses who had earlier sworn affidavits for the petitioner struck out.
  • Appeal succeeds in part but not sufficiently to overturn the election result.
  • Decision of the trial court dismissing the petition affirmed.
  • Respondent No.1 denied costs both on appeal and in the court below for flouting professional ethics.
  • Respondents No.2 and No.3 awarded costs in the court below and on appeal.
  • Appellant awarded one third of his costs on appeal against Respondent No.1.
  • Registrar directed to forward the judgment and record to the Secretary, Law Council, to investigate professional misconduct by Respondent No.1's three firms of advocates.

Key headnotes

Evidence — Affidavits — Recanting witnesses — Affidavits obtained by improperly approaching the opposing party's witnesses
Where a party's counsel approaches a witness of the opposing party and obtains an affidavit recanting that witness's earlier evidence, the affidavit is obtained in violation of rule 19 of the Advocates (Professional Conduct) Regulations and must be struck out as 'forbidden fruit' for infringing the right to a fair trial; the proper course against such a witness is cross-examination in court.
Electoral Law — Election Petitions — Standard and burden of proof under section 61 of the Parliamentary Elections Act
A ground for setting aside an election under section 61 of the Parliamentary Elections Act must be proved on a balance of probabilities and to the satisfaction of the court, the latter being an additional objective requirement beyond the ordinary civil standard; the burden lies on the petitioner.
Electoral Law — Setting aside an election — Attribution of irregularities to the successful candidate
There is no requirement under section 61 of the Parliamentary Elections Act that the irregularities or unlawful acts complained of be attributed to the successful candidate; irregularities committed by electoral officials or other persons may suffice to set aside an election.
Electoral Law — Polling agents — Appointment under section 32 of the Parliamentary Elections Act
Under section 32 of the Parliamentary Elections Act, the appointment of a polling agent must be made by the candidate in writing addressed to the presiding officer of the polling station; an appointment purportedly made by another person on the candidate's behalf does not satisfy the statute.
Electoral Law — Bribery under section 42 of the Parliamentary Elections Act — Proof required
To establish the offence of bribery under section 42 of the Parliamentary Elections Act it must be proved that a gift was offered to a voter, by the candidate or his agent, to induce that voter to vote for a particular candidate; an inducement merely to abandon a polling station, unconnected to any candidate, does not amount to bribery.
Civil Procedure — Burden of proof — Failure to adduce best available evidence — Undertaking to open ballot boxes not pursued
Where a petitioner undertakes to apply for the opening of sealed ballot boxes and examination of electoral records to substantiate his claims but fails to pursue that undertaking at trial, the court cannot resolve contested 'oath against oath' allegations in his favour, and he fails to discharge the burden of proving the alleged irregularities to the satisfaction of the court.

Legislation cited (12)

  • Parliamentary Elections Act 2005 s.61
  • Parliamentary Elections Act 2005 s.32
  • Parliamentary Elections Act 2005 s.35
  • Parliamentary Elections Act 2005 s.42
  • Parliamentary Elections Act 2005 s.48
  • Evidence Act s.101
  • Evidence Act s.102
  • Advocates (Professional Conduct) Regulations SI 267-2 rule 19
  • Electronic Transactions Act 2011 s.8
  • Civil Procedure Rules Order 21 rule 4
  • Civil Procedure Rules Order 21 rule 5
  • Judicature (Court of Appeal Rules) Directions SI 13-10 rule 30

Cases cited (19)

  • Mbaju Jackson v Thembo Gideon Mujungu and Anor (Election Petition Appeal No. 46 of 2021)
  • Kintu Alex Brandon v Electoral Commission and Anor (Election Petition Appeal No. 16 of 2016)
  • Nabukeera Hussein Hanifah v Kusasira Peace K. Mubiru and Anor (Election Petition Appeal No. 72 of 2016)
  • Bantalib Issa Talisola v Electoral Commission and Anor
  • Betty Muzanira Bamukwatsa v Matsiko Winfred Komuhansi and Ors (Election Petition Appeal No. 65 of 2016)
  • Chebrot Stephen Chemoiko v Soyekwo Kenneth and Anor
  • Odo Tayebwa v Bassajjabalaba (Election Petition Appeal No. 13 of 2011)
  • Kwoba Herbert v Ssebuswawo Tadeo (Election Petition Appeal No. 40 of 2016)
  • Col. (Rtd) Dr. Besigye Kizza v Museveni Yoweri Kaguta and the Electoral Commission (Election Petition No. 1 of 2006)
  • Freda Nanziri Kase Mubanda v Mary Babirye Kabanda and Electoral Commission (Election Petition Appeal No. 38 of 2016)
  • Kakooza John Baptist v Electoral Commission and Anor
  • Mashate Maomu v Electoral Commission and Sizomu Wambedde
  • Kakonee Umar v Uganda [2002] UGCA 2042
  • DPP v Kilbourne [1973] 1 All ER 440
  • Banco Arabe Espanol v Bank of Uganda
  • Rwakashaija Azarious and others v Uganda Revenue Authority
  • Omunyokol v Attorney General
  • Kizza Besigye v Kaguta Museveni
  • Nakawunde Lillian Segujja and Electoral Commission v Nabukenya Brenda (Election Petition Appeals 17 and 21 of 2016)
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